Volume 11 - Opinions of Counsel SBRPS No. 88

Unpaid school taxes in cities having a population of less than 125,000 are to be enforced in the manner provided in section 1332 of the Real Property Tax Law.

We have been asked to provide an overview of the legal and policy issues involved in the enforcement of unpaid city school district taxes. This overview only applies to city school districts with populations of less than 125,000 (in those cities with populations of 125,000 or more, school costs are part of the general city levy). Many of these districts extend beyond the city boundaries into adjoining towns, and may be referred to as “enlarged” city school districts (Education Law, § 1526).

Tax enforcement generally

The county is the primary municipal agent for the “guarantee” of other municipal taxes that are unpaid and, generally, the entity responsible for the “enforcement” of the collection of those unpaid. {1} As one court has noted, “[t]he practice of meeting deficiencies in the collection of taxes of subordinate political subdivisions by compelling payment by a larger taxing unit has long been established and entrenched in our system of government [citations omitted]” (Union Free School District No. 11 v. Steuben County, 178 Misc. 415, 418, 33 N.Y.S.2d 854, 858 (Sup.Ct., Steuben Co., 1942), aff’d, 264 App. Div. 945, 36 N.Y.S.2d 440 (4th Dept., 1942)).

Current law – non-city school districts

With respect to taxes levied by non-city school districts, section 1330 of the Real Property Tax Law provides for the school tax collecting officer to make a “return” to the county treasurer of the list of unpaid taxes by November 15 each year [subd. 2]. Thereafter, the county treasurer transmits a list of unpaid taxes to the county legislative body for “relevy” with the annual county tax levy [subd. 5]. By April 1, the county treasurer must remit to school authorities “the amount of returned unpaid school taxes” [subd. 4], whether those have actually been collected. In theory, the county will be made “whole” for this guarantee when it collects or enforces the collection of these taxes as part of the county levy; in practice, however, the county may experience a shortfall if the enforcement proceedings result in less revenue than the amount of the tax lien.

Current law – city school districts

With respect to taxes levied by city school districts, under section 1332 of the RPTL, in general, upon the expiration of the warrant for the collection of city school district taxes, the collecting officer of the city school district must deliver a statement of unpaid taxes to the school authorities [subd. 2]. After review of the statement to ensure its accuracy, the school authorities are required to transmit the statement (and their certification) to the city tax enforcement officer, county treasurer, or both [subd. 3]. The city official is responsible for collection and enforcement of those school taxes due and owing on property within the city, and the county treasurer for the remaining school taxes.

The city or county officer must then proceed to “enforce the collection of such unpaid taxes . . . in the same manner and at the same time” as though they were city or county taxes [subd. 5]. Moneys collected on behalf of the city school district must be paid over on a monthly basis (id.).

By amendment in 1963 (L.1963, c.191), the city and county liability for payment of uncollected city school district taxes was extended to instances in which “within two years after the return of the statement of unpaid taxes no tax sale on account of any such unpaid taxes was held” (id.). In other words, whether or not the city or county receives payment of unpaid city school taxes, the city school district must be “made whole” no later than two years after the return of the statement of unpaid taxes. Effectively, the city or county thus becomes a guarantor of unpaid city school taxes. The purpose of this amendment was to end the practice under which cities and counties would simply not proceed to “enforce” the collection of school taxes, leaving the school district without any effective means to be made “whole.”

Note that the county is responsible for city school taxes levied upon property within the district but located outside the city in the same way and under the same conditions as the city is responsible for those school taxes levied upon school district property located within the city.

If a “tax sale” is conducted, that is, if tax liens are sold at auction (see, former RPTL, § 1006 [repealed]), and the city or county “bids in” the liens (see, former RPTL, § 1008 [repealed]), the city or county must make the school district whole upon the sale, and may not wait until the end of the two year period. (However, since the tax enforcement procedures have been revised to generally eliminate tax sales (RPTL, Art. 11, as amended by L.1993, c.602, L.1994, c.532 and L.1995, c.579), this provision is relevant only in cities which “opted-out” of the new procedures and which previously enforced delinquent taxes via tax sales.)

City school districts – legislative history

The procedures for city school tax collection and enforcement have been in place since 1950. They were enacted as part of a comprehensive legislative reform that made city school districts fiscally independent from the cities themselves in those cities having populations of less than 125,000 (see, Education Law, Art. 51). The legislation, chapter 762 of the Laws of 1950, was prepared by the State Comptroller’s Committee on Constitutional Tax and Debt Limits and City-School Fiscal Relations. One of the primary objectives of this Commission was “to remedy the existing difficulties by establishing city school districts as fiscally independent and fiscally responsible” (L.1950, c.762 [note]). As the Commission stated in a 1949 report:

Legal and administrative confusion has long characterized the fiscal relationships between city governments and city school districts. This condition has impeded progress both in education and in general government. Variations in law and practice are unnecessarily wide and in many cases illogical. In some cities, it is almost impossible to fix responsibility for fiscal policy with respect to schools. In others, a multiplicity of school districts impairs efficiency in school organization and creates uncertainty in financial planning. Until these relationships are disentangled and simplified, the effectiveness of both education and municipal services will continue to suffer (ibid.).

In addition to providing for boards of education, and clarifying financial and budgetary matters, one of the major objectives of the legislation was to establish uniform procedures regarding taxation. The Comptroller’s memorandum that accompanied the bill specifically stated:

The collection of delinquent school district taxes will be handled by the city or county, as the case may be, in the same manner as the collection of delinquent city or county taxes. The city or county will turn over to the school district the proceeds resulting from the collection of delinquent school district taxes (ibid.).

The statute so providing was originally section 3533 of the Education Law. Upon the codification of the RPTL in 1958 (L.1958, c.959), the substance of this provision was transferred to section 1332 of the RPTL, where it remains today.

Policy issues

Prior to 1950, city school districts were not fiscally independent of cities, and their taxes were part of the general city tax. Thus, as a practical matter, there were no school taxes to be collected or “guaranteed” separate from city taxes generally. Consequently, there were no separate proceedings to “enforce” the collection of city school taxes.

When school districts became fiscally independent in 1950, this responsibility could have been vested elsewhere, such as with the county or with the school district itself. Since cities had already been performing this function with respect to property within the cities, we assume that the parties in interest concluded that the least disruptive course of action was to have the cities carry on this responsibility for the now independent city school districts (at least with respect to property within city boundaries).

Another reason for leaving this responsibility with cities may have been that cities are generally responsible for enforcing unpaid city taxes on property within the city. If the county were made responsible for unpaid city school district taxes, it could create enforcement conflicts between the city and county. Specifically, if neither city taxes nor city school district taxes were paid on a particular parcel (not an unlikely scenario), the city and county could both be trying to foreclose their respective liens simultaneously. Depending on the relationship between the city and the county, it might take litigation to determine which had the right to take title to the property.

January 30, 1996

{1} There are a number of exceptions to this “rule.” For example, in Westchester County, the towns guarantee and enforce the collection of unpaid county and school taxes. In the case of cities, many of their charters make the cities responsible for unpaid county taxes, although there are exceptions.